Exhibit e
PLACEMENT AGENT AGREEMENT
August 15, 1999
DSIL Investment Services LLC
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, Domini Social Index Portfolio (the "Portfolio"), an
open-end diversified management investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), organized as a New
York trust, has agreed that DSIL Investment Services LLC, a subsidiary of
Domini Social Investments LLC, shall be the placement agent of beneficial
interests of the Portfolio ("Portfolio Interests").
1. Services as Placement Agent.
1.1 The Placement Agent will act as placement agent of the Portfolio
Interests. In acting as placement agent under this Placement Agent Agreement,
neither the Placement Agent nor its employees or any agents thereof shall make
any offer or sale of Portfolio Interests in a manner which would require the
Interests to be registered under the Securities Act of 1933, as amended (the
"1933 Act").
1.2 All activities by the Placement Agent and its agents and employees as
placement agent of Portfolio Interests shall comply with all applicable laws,
rules and regulations, including, without limitation, all rules and regulations
adopted pursuant to the 1940 Act by the Securities and Exchange Commission (the
"Commission").
1.3 Nothing herein shall be construed to require the Portfolio to accept
any offer to purchase any Portfolio Interests, all of which shall be subject to
approval by the Portfolio's Board of Trustees.
1.4 The Portfolio shall furnish from time to time for use in connection
with the sale of Portfolio Interests such information with respect to the
Portfolio and Portfolio Interests as the Placement Agent may reasonably
request. The Portfolio shall also furnish the Placement Agent upon request
with: (a) unaudited semiannual statements of the Portfolio's books and accounts
prepared by the Portfolio, and (b) from time to time such additional
information regarding the Portfolio's financial or regulatory condition as the
Placement Agent may reasonably request.
1.5 The Portfolio represents to the Placement Agent that all registration
statements filed by the Portfolio with the Commission under the 1940 Act with
respect to Portfolio Interests have been prepared in conformity with the
requirements of such statute and the rules and regulations of the Commission
thereunder. As used in this Agreement the term "registration statement" shall
mean any registration statement filed with the Commission, as modified by any
amendments thereto that at any time shall have been filed with the Commission
by or on behalf of the Portfolio. The Portfolio represents and warrants to the
Placement Agent that any registration statement will contain all statements
required to be stated therein in conformity with both such statute and the
rules and regulations of the Commission; that all statements of fact contained
in any registration statement will be true and correct in all material respects
at the time of filing of such registration statement or amendment thereto; and
that no registration statement will include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading to a purchaser of
Portfolio Interests. The Portfolio may but shall not be obligated to propose
from time to time such amendment to any registration statement as in the light
of future developments may, in the opinion of the Portfolio's counsel, be
necessary or advisable. If the Portfolio shall not propose such amendment
and/or supplement within fifteen days after receipt by the Portfolio of a
written request from the Placement Agent to do so, the Placement Agent may, at
its option, terminate this Agreement. The Portfolio shall not file any
amendment to any registration statement without giving the Placement Agent
reasonable notice thereof in advance; provided, however, that nothing contained
in this Agreement shall in any way limit the Portfolio's right to file at any
time such amendment to any registration statement as the Portfolio may deem
advisable, such right being in all respects absolute and unconditional.
1.6 The Portfolio agrees to indemnify, defend and hold the Placement
Agent, its several officers and directors, and any person who controls the
Placement Agent within the meaning of Section 15 of the 1933 Act or Section 20
of the Securities and Exchange Act of 1934 (the "1934 Act") (for purposes of
this paragraph 1.6, collectively, "Covered Persons") free and harmless from and
against any and all claims, demands, liabilities and expenses (including the
cost of investigating or defending such claims, demands or liabilities and any
counsel fees incurred in connection therewith) which any Covered Person may
incur under the 1933 Act, the 1934 Act, common law or otherwise, arising out of
or based on any untrue statement of a material fact contained in any
registration statement, private placement memorandum or other offering material
("Offering Material") relating to the Portfolio or the Portfolio Interests or
arising out of or based on any omission to state a material fact required to be
stated in any Offering Material or necessary to make the statements in any
Offering Material not misleading; provided, however, that the Portfolio's
agreement to indemnify Covered Persons shall not be deemed to cover any claims,
demands, liabilities or expenses arising out of any financial and other
statements as are furnished in writing to the Portfolio by the Placement Agent
in its capacity as Placement Agent for use in the answers to any items of any
registration statement or any statements made in any other Offering Material,
or arising out of or based on any omission or alleged omission to state a
material fact in connection with the giving of such information required to be
stated in such answers or necessary to make the answers not misleading; and
further provided that the Portfolio's agreement to indemnify the Placement
Agent and the Portfolio's representations and warranties hereinbefore set forth
in paragraph 1.5 shall not be deemed to cover any liability to the Portfolio or
its investors to which a Covered Person would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of a Covered Person's reckless disregard of its
obligations and duties under this Agreement. The Portfolio shall be notified of
any action brought against a Covered Person, such notification to be given by
letter or by telegram addressed to the Portfolio, x/x Xxxxx X. Xxxxxx, Xxx.,
Xxxxxxx Xxxx LLP, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
promptly after the summons or other first legal process shall have been duly
and completely served upon such Covered Person. The failure to so notify the
Portfolio of any such action shall not relieve the Portfolio from any liability
except to the extent the Portfolio shall have been prejudiced by such failure,
or from any liability that the Portfolio may have to the Covered Person against
whom such action is brought by reason of any such untrue statement or omission,
otherwise than on account of the Portfolio's indemnity agreement contained in
this paragraph. The Portfolio will be entitled to assume the defense of any
suit brought to enforce any such claim, demand or liability, but in such case
such defense shall be conducted by counsel of good standing chosen by the
Portfolio and approved by the Placement Agent, which approval shall not be
unreasonably withheld. In the event the Portfolio elects to assume the defense
of any such suit and retain counsel of good standing approved by the Placement
Agent, the defendant or defendants in such suit shall bear the fees and
expenses of any additional counsel retained by any of them; but in case the
Portfolio does not elect to assume the defense of any such suit, or in case the
Placement Agent reasonably does not approve of counsel chosen by the Portfolio,
the Portfolio will reimburse the Covered Person named as defendant in such
suit, for the fees and expenses of any counsel retained by the Placement Agent
or the Covered Persons. The Portfolio's indemnification agreement contained in
this paragraph and the Portfolio's representations and warranties in this
Agreement shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of Covered Persons, and shall survive the
delivery of any Portfolio Interests. This agreement of indemnity will inure
exclusively to Covered Persons and their successors. The Portfolio agrees to
notify the Placement Agent promptly of the commencement of any litigation or
proceedings against the Portfolio or any of its officers or Trustees in
connection with the issue and sale of any Portfolio Interests.
1.7 The Placement Agent agrees to indemnify, defend and hold the
Portfolio, its several officers and trustees, and any person who controls the
Portfolio within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act (for purposes of this paragraph 1.7, collectively, "Covered Persons")
free and harmless from and against any and all claims, demands, liabilities and
expenses (including the costs of investigating or defending such claims,
demands, liabilities and any counsel fees incurred in connection therewith)
that Covered Persons may incur under the 1933 Act, the 1934 Act, common law or
otherwise, but only to the extent that such liability or expense incurred by a
Covered Person resulting from such claims or demands shall arise out of or be
based on any untrue statement of a material fact contained in information
furnished in writing by the Placement Agent in its capacity as Placement Agent
to the Portfolio for use in the answers to any of the items of any registration
statement or in any statements in any other Offering Material relating to the
Portfolio or the Portfolio Interests or shall arise out of or be based on any
omission to state a material fact in connection with such information furnished
in writing by the Placement Agent to the Portfolio required to be stated in
such answers or necessary to make such information not misleading. The
Placement Agent shall be notified of any action brought against a Covered
Person, such notification to be given by letter or telegram addressed to the
Placement Agent at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Xxxxx X. Xxxxxx, promptly after the summons or other first legal
process shall have been duly and completely served upon such Covered Person.
The Placement Agent shall have the right of first control of the defense of the
action with counsel of its own choosing satisfactory to the Portfolio if such
action is based solely on such alleged misstatement or omission on the
Placement Agent's part, and in any other event each Covered Person shall have
the right to participate in the defense or preparation of the defense of any
such action. The failure to so notify the Placement Agent of any such action
shall not relieve the Placement Agent from any liability except to the extent
the Placement Agent shall have been prejudiced by such failure, or from any
liability that the Placement Agent may have to Covered Persons by reason of any
such untrue or alleged untrue statement, or omission or alleged omission,
otherwise than on account of the Placement Agent's indemnity agreement
contained in this paragraph.
1.8 No Portfolio Interests shall be offered by either the Placement Agent
or the Portfolio under any of the provisions of this Agreement and no orders
for the purchase or sale of Portfolio Interests hereunder shall be accepted by
the Portfolio if and so long as the effectiveness of the registration statement
or any necessary amendments thereto shall be suspended under any of the
provisions of the 1940 Act; provided, however, that nothing contained in this
paragraph shall in any way restrict or have an application to or bearing on the
Portfolio's obligation to redeem Portfolio Interests from any investor in
accordance with the provisions of the Portfolio's registration statement or
Declaration of Trust, as amended from time to time.
1.9 The Portfolio agrees to advise the Placement Agent as soon as
reasonably practical by a notice in writing delivered to the Placement Agent or
its counsel:
(a) of any request by the Commission for amendments to the registration
statement then in effect or for additional information;
(b) in the event of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement then in effect or
the initiation by service of process on the Portfolio of any proceeding for
that purpose;
(c) of the happening of any event that makes untrue any statement of a
material fact made in the registration statement then in effect or that
requires the making of a change in such registration statement in order to make
the statements therein not misleading; and
(d) of all action of the Commission with respect to any amendment to any
registration statement that may from time to time be filed with the Commission.
For purposes of this paragraph 1.9, informal requests by or acts of the
Staff of the Commission shall not be deemed actions of or requests by the
Commission.
1.10 The Placement Agent agrees on behalf of itself and its employees to
treat confidentially and as proprietary information of the Portfolio all
records and other information not otherwise publicly available relative to the
Portfolio and its prior, present or potential investors and not to use such
records and information for any purpose other than performance of its
responsibilities and duties hereunder, except after prior notification to and
approval in writing by the Portfolio, which approval shall not be unreasonably
withheld and may not be withheld where the Placement Agent may be exposed to
civil or criminal contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities, or when so requested
by the Portfolio.
1.11 In addition to the Placement Agent's duties as Placement Agent, the
Portfolio understands that the Placement Agent may, in its discretion, perform
additional functions in connection with transactions in Portfolio Interests.
The processing of Portfolio Interest transactions may include, but is not
limited to, compilation of all transactions from the Placement Agent's various
offices; creation of a transaction tape and timely delivery of it to the
Portfolio's transfer agent for processing; reconciliation of all transactions
delivered to the Portfolio's transfer agent; and the recording and reporting of
these transactions executed by the Portfolio's transfer agent in customer
statements; rendering of periodic customer statements; and the reporting of IRS
Form 1099 information at year end if required.
The Placement Agent may also provide other investor services, such as
communicating with Portfolio investors and other functions in administering
customer accounts for Portfolio investors.
The Placement Agent understands that these services may result in cost
savings to the Portfolio or to the Portfolio's investment manager and neither
the Portfolio nor the Portfolio's investment manager will compensate the
Placement Agent for all or a portion of the costs incurred in performing
functions in connection with transactions in Portfolio Interests. Nothing
herein is intended, nor shall be construed, as requiring the Placement Agent to
perform any of the foregoing functions.
2. Term.
This Agreement shall become effective on the date first above written and,
unless sooner terminated as provided herein, shall continue until June 22, 2000
and thereafter shall continue automatically for successive annual periods,
provided such continuance is specifically approved at least annually by (i) the
Portfolio's Board of Trustees or (ii) by a vote of a majority (as defined in
the 0000 Xxx) of the Portfolio's outstanding voting securities, provided that
in either event the continuance is also approved by the majority of the
Portfolio's Trustees who are not interested persons (as defined in the 0000
Xxx) of the Portfolio and who have no direct or indirect financial interest in
this Agreement, by vote cast in person at a meeting called for the purpose of
voting on such approval. This Agreement is terminable without penalty, on not
less than 60 days' notice, by the Board, by vote of a majority (as defined in
the 0000 Xxx) of the Portfolio's outstanding voting securities, or by the
Placement Agent. This Agreement will also terminate automatically in the event
of its assignment (as defined in the 1940 Act and the rules thereunder).
3. Representations and Warranties.
The Placement Agent and the Portfolio each hereby represents and warrants
to the other that it has all requisite authority to enter into, execute,
deliver and perform its obligations under this Agreement and that, with respect
to it, this Agreement is legal, valid and binding, and enforceable in
accordance with its terms.
4. Concerning Applicable Provisions of Law, etc.
This Agreement shall be subject to all applicable provisions of law,
including the applicable provisions of the 1940 Act and to the extent that any
provisions herein contained conflict with any such applicable provisions of
law, the latter shall control.
This Agreement is executed and delivered in Boston, Massachusetts, and the
laws of the Commonwealth of Massachusetts shall, except to the extent that any
applicable provisions of Federal Law shall be controlling, govern the
construction, validity and effect of this Agreement, without reference to
principles of conflicts of law.
If the contract set forth herein is acceptable to you, please so indicate
by executing the enclosed copy of this Agreement and returning the same to the
undersigned, whereupon this Agreement shall constitute a binding contract
between the parties hereto effective at the closing of business on the date
hereof.
Yours very truly,
DOMINI SOCIAL INDEX PORTFOLIO
By: Xxxxx Xxxxxx
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Title: Vice President
Accepted:
DSIL INVESTMENT SERVICES LLC
By: Xxxxxx Xxxxxx
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Title: Treasurer
